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Present : Ennis and Schneider JJ.
APPUHAMY et al. v. KUMARIHAMY et at.93—D. C. Badulla, 3,585.
Kandyan lair—Re-acquisition of binna rights by woman married in diga—
Property sold by other heirs before re acanj-sttion.
The re-acquisition of binna rights by a Kadyan woman, who w-asmarried in diga, does not give her title to property alienated bythe other heirs before she re-acquired the binna rights.
The re-acquisition of binna rights is not a one-.sided process; thefather’s family must intend, or at least recognize, the results.
HE facts are set out in the judgment of the District Judge.R. G. Saunders, Esq.): —
Loku Banda Arachchi was the original owner of the land in dispute.He was married to Kumarihamy, first defendant. They had two'children, Hcen Banda and BadaraMenika,second defendant.Bandars
Menika married PunchiBanda (1)in diga,and consequentlyforfeited
inheritance to paternal property. The chief point to be decided inthis case is whetherBandaraMenikare-acquired binnarights.
This is purely a question of fact, and I hold that the evidence, even ofthe witnesses called bydefendant,clearly shows that until the death
of her husband Punchi Banda (1), second defendant was living in digawith her husband ar Sorauatota. The case for defendants is that
( no )1922.
after her marriage with Punchi Banda (1) she returned to the mulgederaat Kadorngamuwa and took up her abode there. The evidence calleddisproves this. That second defendant should return to the mul-gcdcra from time to time and visit her mother is only natural, but itis quite clear they were mere “ visits,** and that second defendant didnot return to live permanently at the mulgedera' till after the death ofPunchi Banda (1), when she retnrned to the mulgedera- and contracteda second marriage. The fact, too, that he brother Heen Banda andKumarihamy disposed of her original share of the land' without con-sulting her and dealth with it, as Bandara Menika admits " without myknowledge or consent,” clearly shows that they believed and acted on‘such belief, that by her marriage with Pnnchi Banda (1), BandaraMenika had forfeited her rights and had not re-acquired them at thetime they dealth with the land. There is no doubt that the variousdocuments produced were executed by Kumarihamy and her son HeenBanda, and that the land was possessed by the parties concerned in thedocuments. I accordingly hold that the plaintiffs became entitled tothe land ” Beeriyagaha Uhana " by deed of transfer No. .4,432 ofNovember 2, 1913, and by prescriptive possession (issues 1 and 2). Aaregards the third issue: ” Did defendants dispute title to the said landsin May, 1921, and unlawfully remove half the' crop therefrom,” there canbe no doubt they did in fact do so, the defendants, undoubtedly, didremove half the crop, but their contention is that they did not oustplaintiffs from their (plaintiffs’) half share (vide paragraph 2 of theanswer). As, however, I have held that plaintiffs are entitled to the wholeland, I must hold that defendants did remove half the crop belonging toplaintiffs, and I accordingly give issue (3) in favour of plaintiffs. Asregards damages no very satisfactory evidence has been led, but 1 seeno reason for not accepting plaintiffs’ figure Rs- 82 (issue 4). Asregards issue 6: ** Is there a misjoinder of first and third defendants.”1 hold that they have been rightly joined, third defendant is the presenthusband of second defendant, and it was by the acts of first defendantin conjuction with Heen Banda that plaintiffs ultimately possessed thisland and. in any dispute to plaintiffs’ right to the ^ame. It appearsto me natural and tproper that the party on whom plaintiffs base theirrights should be made parties to the action.
Zoyza (with him Batuwantudawa), for appellant.
H. V, Per era, for respondent.
September 6, 1922. Ennis J.—
This was an action for declaration of title to a land in theKandyan Province. To understand the case it is necessary to setout the chain of title. The land originally belonged to Loku BandaArachchi who married Kumarihamy, the first defendant in this case.They had two children, Bandara Menika,' the second defendant inthe case, and Heen Bandara. Loku Banda died, and Bandara Menikamarried in diga and so forfeited her rights to the property. Afterthis marriage, Heen Banda and first defendant executed a deedon June 15, 1909, by which they conveyed the land now in disputeto one Ahamadu Marikar who, in 1913, by the document P 1, con-veyed it to the first defendant and his son Jayawardene. Jayawar-tlene died, and his share devolved on his mother, upon whose death
( m )it devolved on second plaintiff who is a daughter of first plaintiff. 1922.
The first and second defendant disputed his rights to the land, and Enshs J
claimed a declaration of title and possession of the land. The only ■
question which arose in the case is whether Bandara Menika, the Appuham/ysecond defendant, had regained her binna rights, or whether she had Kumarihamyever lost them. The first defendant said that she had no claim, anddid not dispute plaintiffs' right. The case is mainly between theplaintiff and second defendant. On this question of- fact, the learnedJudge has held that Bandara Menika married her husband in digaand paid visits only to the mulgedera during his lifetime, and thatshe did not re-acquire binna rights in the parental estate in thatinterval. This contention seems to be well founded. The evidenceof Loku Banda, Arachchi of Sorantota, shows that she went to herhusband *8 village within a few days of her marriage, and the marriageis admittedly one in diga, and is so registered. Moreover, it is clearthat Seen Banda and Kumarihamy had not acquiesced in therecovery of binna rights by the second defendant at the time of theirconveyance in 1909. The re-acquisition ,of binna rights “ is not aone-sided process; the father’s family must intend, or at least re-cognize, the results ” as stated in the judgment of my brother DeSampayo in the case of Punchi Menika v, Appuhamy.1 Thereis no evidence in the present case that Heen Banda and Kumarihamyrecognized any binna rights in Bandara Menika until her firsthusband died, when, it appears, she returned to the mulgedera andmarried a second time in binna. At that time, however, the landin dispute had already been alienated by those who, at the time ofalienation, alone had the right to alienate it. A curious argumentwas addressed to us, viz., that on her second marriage BandaraMenika regained all the rights which she might have had at the timeof her first marriage, and that they included a right to a share of theland now in dispute. I am unable to agree' with the contention,because Bandara Menika on her first marriage forfeited her rights,and Heen Banda and. Kumarihamy had, therefore, full right toalienate the property, a right which they exercised in favour of thepurchaser' in 1909. Anything therefore which Bandara Menikacould re-acquire at the time of her second marriage could be onlysuch paternal property as remained with Heen Banda and Kumari-hamy at the time of her re-acquisition of binna rights, and it cannotbe said that Bandara Menika regained a share in property no longerbelonging to the paternal estate. I see no reason to interfere withthe finding of fact, and would dismiss the appeal, with costs.
1 (2901) 29 N. L. R. 353.
APPUHAMY et al. v. KUMARIHAMY et al